Haitians convicted of illegal entry received due process, says Court Administration Division

The 29 Haitian migrants convicted of illegal entry last week did not have a lawyer in the Portland Parish Court, but "due process was followed", the Government's Court Administration Division has said.  

Attorney John Clarke says given the circumstances of the case, which involved non-English speakers now seeking asylum, it would have been useful to have a legal representative. 

Director, Client Services, Communication and Information at the division, Kadiesh Fletcher, said Parish Judge Patichia Lopez presided over the matter which came before her on July 18.

“An attorney was not present in court when they appeared; however, we are confident that due process was followed in relation to their court appearance. Interpreters were present in court and they explained the process to each individual. Additionally, the judge instructed the interpreters to explain the process of seeking asylum in Jamaica to the migrants,” she told The Gleaner this evening. 

Fletcher said she did not have the sequence of events and so could not say who first raised the issue of asylum. 

“Generally speaking, for the parish court, you don't have to have an attorney. If the judge is of the opinion that the matter is particularly serious, and the judge thinks that you need an attorney for whatever reason, then the judge can say 'you need an attorney'," Fletcher added.

Meanwhile, Clarke, a defence lawyer, said the situation should have compelled the Government to ensure the Haitians had legal representation.

"It is quite clear, it seems, that the Haitians weren't advised of their options in relation to applying for asylum or furthermore what exactly are their legal rights in relation to the very offence for which they are charged and possible legal defences," he said, acknowledging that a judge "has no obligation under the law, essentially, to become the Haitians' lawyer." 

Clarke added: "Perhaps the judicial system has to look at it to say whether in our bid to have rushed justice we're crushing justice, and in cases like these, there will be a special category of cases which perhaps should be handled differently. Because it is not appropriate or can it be something that we are proud of that persons who can barely speak English .. would find themselves quickly pleading guilty.”

Last Tuesday, the judge fined the 29 adult Haitians $7,000 or three days in prison for illegal entry and ordered that they be sent back to their country, which is wracked by violence, hunger and the absence of elected officials. 

A day later, Information Minister Robert Morgan indicated that the 37 Haitians, including eight children, who arrived in Portland by boat on July 10, were advised of their rights under international law and that none had submitted an application for asylum on arriving in Jamaica. 

As a result, he said that the Government had no choice but to deport them. 

“The other thing that we must take into consideration is not to assume that the intended destination of the individuals was Jamaica,” he said. 

The group is being housed at a remote campsite in St Mary. 

Gleaner questions sent last Thursday evening to the Ministries of Foreign Affairs and Foreign Trade and National Security about the processes that were involved in the provision of legal advice to the Haitians; how the fines are being paid; and the deportation date remain unanswered. 

On Saturday, the Government acknowledged that it received a request for asylum for the Haitians submitted by Malene C. Alleyne, international human rights lawyer and founder of Freedom Imaginaries.

She pointed Government to the United Nations Refugee Agency's call for countries to suspend the forced return of Haitians to their country because "conditions in Haiti continue to be dire". 

The agency said removing people to a place where they risk of persecution, torture or other serious or irreparable harm is explicitly prohibited under international refugee and human rights law.

CARICOM nations, and the ones closest to Haiti, like Jamaica, quietly fear an influx of migrants from Haiti if they start to accommodate asylum requests, part of the motive behind the calls to rich countries to do more help. 

Last week, a senior member of the Andrew Holness administration said the situation presented some “awkwardness” for the Jamaican prime minister, who is among those leading CARICOM's charge for international assistance to help Haiti restore law and order and wrest territorial control from marauding gangs.

Myrtha Désulmé, president of the Haiti-Jamaica Society, who has joined Freedom Imaginaries' appeal, said fears about opening the 'floodgates' to more Haitians if this group is allowed to stay are not legitimate.

“Why can the whole world come together and find solutions and resettle the Ukrainians, the Venezuelans, the Afghans, the Syrians [but] with the Haitians it's always run them so the next set doesn't' come? The Caribbean must come together and find a solution … ,” Désulmé argued.

- Jovan Johnson and Sashana Small

Follow The Gleaner on Twitter and Instagram @JamaicaGleaner and on Facebook @GleanerJamaica. Send us a message on WhatsApp at 1-876-499-0169 or email us at onlinefeedback@gleanerjm.com or editors@gleanerjm.com.